Aaron Swartz was a zealous young advocate for the free exchange of information and creative content online. He committed suicide in 2013 after being indicted by the government for illegally downloading millions of academic articles from a nonprofit online database. From the age of fifteen, when Swartz, a computer prodigy, worked with Lawrence Lessig to launch Creative Commons, to his years as a fighter for copyright reform and open information, to his work leading the protests against the Stop Online Piracy Act (SOPA), to his posthumous status as a cultural icon, Swartz’s life was inextricably connected to the free culture movement. Now Justin Peters examines Swartz’s life in the context of 200 years of struggle over the control of information.
In vivid, accessible prose, The Idealist situates Swartz in the context of other “data moralists” past and present, from lexicographer Noah Webster to ebook pioneer Michael Hart to NSA whistleblower Edward Snowden. In the process, the book explores the history of copyright statutes and the public domain; examines archivists’ ongoing quest to build the “library of the future”; and charts the rise of open access, the copyleft movement, and other ideologies that have come to challenge protectionist intellectual property policies. Peters also breaks down the government’s case against Swartz and explains how we reached the point where federally funded academic research came to be considered private property, and downloading that material in bulk came to be considered a federal crime.
The Idealist is “an excellent survey of the intellectual property battlefield, and a sobering memorial to its most tragic victim” (The Boston Globe) and an essential look at the impact of the free culture movement on our daily lives and on generations to come.
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About the Author
Read an Excerpt
On Friday, January 4, 2013, Aaron Swartz awoke in an excellent mood. He brought his girlfriend, Taren Stinebrickner-Kauffman, up to the roof of their apartment building in Brooklyn, New York. Under overcast skies, he turned to her and said, unprompted, “This is going to be a great year.”1
The statement was wildly optimistic. Two years earlier, Swartz had been caught using the computer network at the Massachusetts Institute of Technology to download millions of scholarly journal articles from the online database JSTOR. While downloading academic papers is not in itself against the law, doing so in bulk without explicit authorization is—or, at least, that was what the US Attorney’s Office in Boston had claimed. Swartz was arrested and indicted on felony computer-crime charges that carried a maximum penalty of ninety-five years in prison and more than $3 million in fines.
Swartz ran no risk of receiving the top sentence. But his friends and family did not think he deserved any prison time at all. When his former girlfriend Quinn Norton met with the prosecutors in April 2011, she marveled at their stubborn insistence that excessive downloading was a serious crime. “I told them this case was ridiculous, I told [lead prosecutor Stephen Heymann] not to do this,” Norton wrote of the meeting. “They listened in silence.”2
The prosecutors, as prosecutors tend to do, were using the threat of a long sentence to pressure Swartz into pleading guilty. But they were adamant that any plea bargain would have to include some jail time. The government initially offered Swartz a relatively lenient deal: plead guilty to a single felony count and serve a few months in a federal prison, followed by a period of supervised release.3
But Swartz refused to sign any plea that would send him to prison. He resented that the supervised release program would restrict his access to computers. Nor was he keen to have a felony conviction on his record. Several months after his arrest, Swartz and Norton had visited Washington, DC. While walking by the White House, Swartz got sad. “They don’t let felons work there,” he said.4
Swartz was twenty-six, small and dark, with shaggy black hair that fell below his ears, and an occasional beard that fell somewhere between stubble and scruff. As a boy he had been ashamed of his body, which he felt was “embarrassingly chubby.”5 But time had straightened and sharpened his features, and now he was handsome and barely resembled the awkward young computer prodigy he had once been. “Teenager in a million,” the Sunday Times had dubbed him in 2001, when he was fourteen, in an article lauding him as a computer programmer whose gifts far exceeded the norm for his age.6 At age nineteen, his whiz-kid reputation only grew when Reddit, the Internet start-up he had helped to build, was purchased by the publisher Condé Nast for an undisclosed sum said to be somewhere between $10 million and $20 million.7
Swartz never told anyone how much money he earned from the sale, though it was clearly a substantial amount. “His reticence became a running joke between us,” Norton wrote, “me prying, cajoling, pressuring, and Aaron never giving in.”8 Swartz kept a lot of things to himself. When he first started dating Taren Stinebrickner-Kauffman, he withheld all details of his legal predicament, not even mentioning that he had been arrested. Instead, he referred to the case, euphemistically, as “the bad thing.”
The bad thing came into being during the first few days of January 2011, when network engineers at the Massachusetts Institute of Technology discovered a laptop concealed in a basement closet and wired into the campus network. The computer had been programmed to download documents from JSTOR at a rapid rate. The school installed a surveillance camera and, on January 6, photographed a young white male with dark, wavy hair entering the closet to retrieve the laptop. The man attempted to conceal his face behind a bicycle helmet, but he was clearly Aaron Swartz.
This discovery raised far more questions than it answered. Aaron Swartz was famous. He was neither a malicious hacker nor a vandalistic “script kiddie,” but rather a well-known programmer and political activist. He was friends with the Internet icons Lawrence Lessig and Tim Berners-Lee. He was a research affiliate at Harvard. His blog was internationally popular. So why was he skulking around an MIT basement siphoning obscure research papers like some tenure-track cat burglar? What were his plans for the nearly 5 million JSTOR documents he had acquired? What in the world was he thinking?
Even two years after his arrest, these questions remained unanswered. The prosecutors believed that Swartz intended to post the JSTOR archives for free on the Internet. Since childhood, he had been affiliated with the “free culture” movement, whose members believe that digital networks ought to remove barriers to information access, not erect them—that the Internet ought not to be considered a bookstore so much as an infinite library, its contents made available for the benefit of all.
Free culture is rooted in the public domain, a concept that dates to the earliest formalized copyright laws. In America, when a work’s copyright expires, that work falls into the public domain, which means that the public is free to use, modify, and distribute it at will, without having to pay a fee or ask permission. In 1790, when the United States passed its first federal copyright statute, the standard copyright term lasted fourteen years, with an optional fourteen-year renewal period. By the time Swartz first started downloading JSTOR articles, the standard copyright term for new works in America lasted until seventy years after the author’s death, and the public domain had correspondingly dwindled.
The existence of the public domain implies that the public has an inalienable stake in works of culture and scholarship—even works that they did not themselves devise. Stories mean little unless they are told and retold, and in the retelling, new meaning accrues to the original tale. The effect a given work has on its audience—and vice versa—is intrinsic to its social value.
Many free culture advocates believe that copyright terms should be reduced and that the public domain should be reinvigorated. “I want to see copyright regulation shrunken back down to where it came from,” Swartz wrote in 2002. “These freedoms likely won’t be retroactive, and they certainly won’t be easy, but we must try to achieve them.”9 Swartz even argued that restricting public access to useful knowledge was immoral, and that the information-rich were obliged to share their bounty with the information-poor.10
This sort of rhetoric horrifies many of the publishers, film studios, record companies, software developers, and other culture merchants whose businesses are based on the artificial maintenance of information scarcity. Radical free culture could drive them into bankruptcy. They see unauthorized online file sharing not as an act of liberation, but of larceny; to them, someone like Swartz wasn’t an idealist, but a common thief.
“Stealing is stealing, whether you use a computer command or a crowbar and whether you take documents, data or dollars,” said US Attorney Carmen M. Ortiz in a press release that announced Swartz’s indictment.11 From her standpoint, American law and custom clearly establish copyright as a property right, and society has derived clear benefits when the laws protecting property are vigorously enforced.
Writing for the online magazine Guernica, days after the indictment, Swartz’s friends John Summers and George Scialabba ridiculed Ortiz’s simplistic moral tautology: “ ‘Stealing is stealing’ is phrase-making designed to confuse the legal and moral distinctions between the kind of cyber-crime everyone should oppose, such as stealing credit card and social security numbers, and efforts, like Aaron’s, to make knowledge more accessible to the educated public. Ms. Ortiz, incredibly, asks the public to ignore the motive behind the act.”12
But Swartz never publicly revealed his motives. He rarely discussed the case at all, even with his closest companions. His silence seemed impelled by shame, an intrinsic emotional solitude, and a reluctance to involve his friends in his troubles lest they, too, incur the government’s wrath. As Stinebrickner-Kauffman later said, Swartz generally believed “that he shouldn’t rely on anyone else . . . that strength meant standing alone.”13
Swartz’s self-reliance often proved debilitating, to the extent that even the prospect of asking a flight attendant for a glass of water was enough to inspire paroxysmal guilt. “I feel my existence is an imposition on the planet. Not a huge one, perhaps, not a huge one at all, but an imposition nonetheless,” he wrote in 2007. “Even among my closest friends, I still feel like something of an imposition, and the slightest shock, the slightest hint that I’m correct, sends me scurrying back into my hole.”14
Swartz had been in his hole since his arrest, in a sense, and at times it seemed that he would never be able to emerge. His decision to spurn the proffered plea bargain had irked the prosecutors, and since then the two sides had been at loggerheads. As the April 1, 2013, trial date approached, the lead prosecutor, Stephen Heymann, said that he would request a federal-guidelines sentence of at least seven years in prison if he won the case.
But new years represent new beginnings, and at the start of 2013, Swartz saw reason for optimism. He had new lawyers, from Keker & Van Nest, a San Francisco firm that specializes in intellectual property law and white-collar-criminal defense. His lead attorney, Elliot Peters—no relation to the author of this book—was prepared to argue that the authorities had inappropriately searched and seized Swartz’s computer and USB drive, and he hoped to convince the judge to bar prosecutors from using any of the evidence they had found therein. If the suppression motions succeeded, then maybe the prosecutors could be induced to offer a better deal. Maybe Swartz would go to trial and win.
“We’re going to win, and I’m going to get to work on all the things I care about again,” Swartz told his girlfriend on their rooftop that day. That list was long. Swartz had innumerable interests, and he indulged them all—a trait that occasionally exasperated the colleagues and collaborators who struggled to command Swartz’s full attention. He was a programmer and a political activist, an aspiring author who had started and abandoned drafts of several books. He had recently become a contributing editor to a small magazine called the Baffler. He was beginning to do research on how to reform federal drug policy. He loved the novelist David Foster Wallace. He watched a surprising amount of television—Louie, Boss, and The Newsroom were favorite shows.
In 2006, Swartz penned a “generalist manifesto” in which he urged his readers to elevate their professional ambitions and transcend their self-imposed limitations. Software engineers, for instance, shouldn’t settle merely for writing effective computer code; they should consider how to apply their talents toward more majestic ends. “People are afraid of grandeur; it challenges the status quo. But you shouldn’t be,” he wrote. “ ‘Look up more’ should be your motto; ‘Think bigger’ your mantra.”15
He followed his own advice and came to think of himself as an “applied sociologist,” actively working to develop rational strategies for making the world a better place. “Saving the world” had long headed Aaron Swartz’s bucket list, and he was intent on achieving that goal. In 2011, he even drafted a document titled “How to Save the World, Part 1,” in which he identified and analyzed eight methods that could be used to amass power and influence policy, ranging from innovative public-relations messaging (“In a democracy, changing the world usually means changing the public’s mind”) to tactical legal pressure (“Litigation in general is a powerful activist strategy”).16
Swartz planned to save the world by making it more effective. He was a voracious reader of business books: the biography of investor Warren Buffett; that of Walmart’s founder, Sam Walton; anything that might contain insights into organizational behavior and successful management strategies. At the beginning of 2011, in a capsule review of a book about the Toyota Motor Corporation, Swartz wrote that “lean production”—the Toyota management strategy that prioritized perfectly efficient manufacturing techniques—was “undoubtedly the greatest human art form,” and he meant it (“with sex running a close second,” he clarified).17
Swartz was obsessed with systems, optimizing and improving them; with making things work where they hadn’t before. “The revolution will be A/B tested,” he liked to say, meaning, essentially, that the most effective organizations recognized their successes and their failures, learned from both, and adjusted their tactics accordingly. “The revolution will be A/B tested” was something of a life philosophy for Swartz. In project after project, he probed and tinkered until he had elicited the answers he was seeking, forever iterating his way toward the ideal outcome, the logical solution.
The bad thing was bad, in part, because it resisted logical analysis. Aaron Swartz had no criminal record. His alleged crime was neither violent nor actively malicious. Swartz returned everything he had downloaded, and JSTOR, conscious of its public image, told prosecutors that it did not want to see him jailed. Yet the US Attorney’s Office in Boston had delivered a thirteen-count felony indictment and pursued the case with what Swartz and his allies considered disproportionate zeal.
Getting caught inside an irrational, inflexible system—one that made no provisions for his own exceptionalism—was one of Swartz’s great fears. He had fled from most of the hierarchies he had encountered during his life. High school, college, the business world: he departed all three prematurely, after finding himself unable to accept their partitions and constraints. The Department of Justice was yet another sclerotic institution, best withdrawn from rather than withstood. But a defendant cannot unilaterally withdraw from a criminal indictment, and that was perhaps the worst, most frustrating thing about Swartz’s legal situation: he couldn’t improve it, and he couldn’t escape it.
In 2013, Swartz’s friend Seth Schoen wrote about Swartz’s boundless faith in reason. According to Schoen, Swartz believed he would “fix the world mainly by carefully explaining it to people.”18 Some people, however, didn’t particularly want to have the world explained to them by a dogmatic young man with a flair for polemics. “He’s a young guy who likes to flame,” the software engineer Dave Winer, one of Swartz’s earliest sparring partners, wrote in 2003. “He’s treated me like crap for years, and child or not, I’m tired of it, and I’m not taking it anymore.”19 Though many people thought him brilliant, many others just thought him immature.
Swartz could be dramatic and tendentious, prone to provocative overstatement. As a teenager, he questioned the “absurd logic” of laws that banned the distribution and possession of child pornography.20 In 2006, he argued that music was perhaps objectively improving over time, and that Bach’s Well-Tempered Clavier might well be inferior to Aimee Mann’s 2005 album, The Forgotten Arm.21 He eschewed business suits on principle, calling them “the physical evidence of power distance, the entrenchment of a particular form of inequality.”22
“I felt like he certainly had sort of the conviction of youth, in the sense that he was convinced that whatever he was doing at any one time—or at least he sort of projected this—he was absolutely convinced that that was the way to go,” his friend Wes Felter said. “And the thing is that most people sort of outgrow that, and I don’t know if he ever did.”23
Throughout Swartz’s life, simple stimuli routinely elicited complex reactions, and minor aggravations were routinely magnified into moral crises. A pathologically picky eater, Swartz preferred bland, achromatic foods: dry Cheerios, white rice, Pizza Hut’s Personal Pan cheese pizzas. (“This reached its extremes at a World Wide Web conference where all the food was white, even the plate it was on,” Swartz wrote in 2005. “Tim Berners-Lee later pulled my mother aside to share his concerns about this diet.”)24 He suffered from ulcerative colitis, which partially explains his limited palate. But he also told friends he was a “supertaster,” extraordinarily sensitive to flavor, as if his taste buds were constantly moving from a dark room into bright light. His friend Ben Wikler suggested that Swartz was also a “superfeeler,” forever oscillating between emotional extremes.25
On the morning of Friday, January 11, 2013, Swartz seemed particularly morose, in sharp contrast to his earlier optimism. He was slow to rise from bed and told Stinebrickner-Kauffman that he was going to stay home from his job at the global tech consultancy ThoughtWorks. “I said, ‘Well, why don’t I stay home with you, and we’ll go for a hike? We’ll go for a hike today,’ ” Stinebrickner-Kauffman remembered. “And he said no, that he just really wanted to rest, and he needed to be alone.”26
When she got to work, Stinebrickner-Kauffman contacted Wikler and organized a dinner party for that evening, in hopes that the gathering might lift Swartz’s spirits. Wikler had introduced the two of them at the end of 2010, toward the end of Swartz’s relationship with Quinn Norton. “In the first eight weeks that I started dating him, he quit two jobs, broke up with his ex-girlfriend—Quinn—moved from Cambridge to New York, and was indicted,” Stinebrickner-Kauffman recalled. “So it was kind of a big time in his life.”27
Despite these adverse circumstances, a romance flourished between the two. Early in their courtship, Swartz joined Stinebrickner-Kauffman and two mutual friends on a strawberry-picking excursion, much to his evident displeasure. “Strawberry picking wasn’t his idea of a productive way to spend the afternoon,” one of the holidaymakers, Nathan Woodhull, recalled, in a significant understatement. “It was very much Taren’s idea. And I remember joking to her, later, that he must have really liked her.”28
In the spring of 2012, they began to cohabitate, sharing a small apartment near Prospect Park in the Crown Heights neighborhood of Brooklyn. “We would joke about how the two of us would really confuse the census,” Stinebrickner-Kauffman said.29 “We could be reasonably recorded as two unmarried high school dropouts living together in a one-room studio.” As their relationship progressed, Swartz gradually began to bridge the emotional distance that had long set him apart from the world. “Early in our relationship he didn’t want to feel like he was dependent on me in any way,” Stinebrickner-Kauffman remembered. “And I think that changed a lot. I think that he saw us as a pair that could compensate for each other’s strengths and weaknesses.”30 As 2012 drew to a close, their love was stronger than ever before.
On the evening of January 11, 2013, Stinebrickner-Kauffman stopped at Ben Wikler’s apartment on her way home from work. As she played with Wikler’s newborn son, she mentioned that Swartz had told her that he might consider getting married after his case was resolved.31 Swartz had long scorned the idea of marriage, but he was beginning to reconsider his opposition. If a reversal like that was possible, then anything was possible.
But less than two miles away, in a small and dark studio apartment, Aaron Swartz was already dead by his own hand.
A plan, an arrest, a prolonged indictment, a resolute prosecutor, a suicide—these are the undisputed facts of Aaron Swartz’s case. They are outnumbered by the questions that Swartz’s family, friends, and supporters began asking soon after his death. Why had the US attorneys been so intent on sending Swartz to prison? Why did Swartz choose to hang himself rather than go to trial or accept a plea bargain? How did academic research papers come to be considered private property, protected by law? How did accessing that material without explicit authorization come to be considered a federal crime? These questions remain vexatious even now, almost exactly four years later. This book is an attempt to address them.
The story of Swartz’s life and the circumstances of his death are recent inflection points in a contentious debate over the means by which information circulates in society and the laws and technologies that speed or delay its progress. Aaron Swartz has become an avatar for a movement, his actions and presumed intentions an argument that the government ought to pass laws that promote, rather than inhibit, the digital dissemination of knowledge.
This debate is not new. The epidemiology of information has been a public-policy concern since the preliterate era, when news and legend spread orally, allowing fealty and rebellion to slowly infect what I’ll call the cultural brain. The cultural brain is the zeitgeist, the ether, the intangible repository of communal interests. The cultural brain is the conversation. Its changing makeup is a function of technological progress. The oral tradition, the printing press, the railroad, the telephone, the radio, the television, the Internet—all of these innovations opened channels for what otherwise might have remained stray ideas, and gave those ideas velocity and direction. They are the mechanisms by which an entire society can come to consider and discuss the same ideas and events. Lawmakers have never been quite sure whether to feed or starve the cultural brain. As communications technologies have advanced, this conflict has intensified.
In his 1987 book, The Media Lab, the entrepreneur and futurist Stewart Brand memorably asserted that “information wants to be free”: that it is effectively impossible to restrict the flow of (and artificially maintain high prices for) data in a world rife with photocopiers, tape decks, instant cameras, digital networks, and other such disseminative tools.32 Brand was the founder of the Whole Earth Catalog, which, in the 1960s and 1970s, brought long-haired shoppers a message of conscientious consumption. In the 1980s, Brand became interested in digital networks. He thought that, like the tools he had featured in the Catalog, these networks had the potential to bridge cultural chasms and empower their users to transform society.
“Information wants to be free,” with its air of casual inevitability and hazy, imprecise idealism, is less an insight than a bumper sticker, easy to chant, easier to dismiss. Perhaps this is why the phrase resounded. It was pithy, unapologetic. Of course information wants to be free: the more people who are familiar with a particular piece of information, the more relevant that information becomes. But fewer people remember what Brand wrote immediately thereafter:
Information wants to be free because it has become so cheap to distribute, copy, and recombine—too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away. It leads to endless wrenching debate about price, copyright, “intellectual property,” and the moral rightness of casual distribution, because each round of new devices makes the tension worse, not better.33
Brand’s paradox describes the state in which we find ourselves today, and neatly summarizes the ideologies that have driven the last half century’s worth of data activism. While the members of the copyright bar drafted laws ensuring that information would remain expensive, engineers and futurists constructed a medium that would help set that information free. Since the earliest days of digital computing, idealists have envisioned the machines as the foundation of an infinite library that would offer unfettered access to the fruits of human knowledge and creative production. The “library of the future” would be intuitively organized and universally accessible; it would be responsive, personalized, and intelligent; it would belong to everyone and benefit everyone.
But this dream has consistently been deferred, perhaps because it is and has always been wildly unrealistic. The informaticists Rob Kling and Roberta Lamb characterize computing technology as the “centerpiece of seductive dreams,” a license for digital soothsayers to emphasize computing’s utopian potential while ignoring the sociopolitical realities that might thwart ideal outcomes.34 Theoretically, computers and the Internet can be used to promote congruence, tolerance, and understanding. In the real world, however, forward progress will always be slowed by social and political friction, often generated by those who do not think these goals represent progress at all. Internet enthusiasts often presume that the network inevitably leads to yes, even though the world has always, always, always been defined by no.
For more than a century, Congress and America’s content industries have been of one mind on copyright policy, consistently advocating for longer terms and harsher penalties for scofflaws, nominally in order to empower individual creators, but also to maintain the commercial viability of the companies that publish and distribute those works. Most major new advances in communications have been greeted with a barrage of rhetoric and legislation meant to inhibit the new technologies for the benefit of existing ones.
Meanwhile, unauthorized access to intellectual property has consistently been characterized as piracy, the perpetrators as bespectacled Blackbeards intent on ravaging the cultural commonweal. Statute and morality have been conflated by copyright holders seeking to extend their monopolies and by legislators looking to validate their decisions to pass laws that do so.
Today, the Internet is an information smorgasbord, an endless buffet of data sets, research papers, essays, news articles, instruction manuals, annual reports, and myriad other materials that the curious soul can use for edification and self-improvement. But much of this content is inaccessible, consigned to subscription databases or hidden behind paywalls or subject to other impediments. The Internet has simultaneously shrunk and expanded the world with its hyperlinked data and its decentralized, disintermediated communications. And it has consistently confused and frustrated legislators and capitalists who don’t understand why so many users are so insistent on flouting The Rules.
Aaron Swartz broke The Rules, consistently and creatively. He did not always explain why, but he broke them, and now his death has led many people to question those rules and wonder why they seem so incongruous with the realities of the digital era, in which information has become untethered to physical formats and it takes only moments for news and legend to permeate the cultural brain.
Three years after Aaron Swartz died, his story is still on many people’s minds. A large street-art mural of his face, set next to the words RIP AARON SWARTZ, adorns the side of a building in Brooklyn. The filmmaker Brian Knappenberger turned Swartz’s life story into the documentary The Internet’s Own Boy, which played at the Sundance Film Festival and was released in theaters during the summer of 2014. Every year around his birthday, Swartz’s friends and admirers worldwide organize a series of weekend-long “hackathons” intended to stimulate the sorts of social projects Swartz cherished. A cottage industry of programmers and political activists has arisen to ensure that Swartz’s legacy will survive.
Of course, to tell the story of Aaron Swartz requires more than just the story of Aaron Swartz—the difficult, immoderate men and women who preceded him as caretakers of the cultural brain must also be included. They share a spiritual kinship with Swartz, confident, as he was, not only in the righteousness of their causes, but that they themselves were destined to advance them. Their lives, passions, accomplishments, and failures provide a necessary context for Swartz’s life and death. His story is inextricably twined with theirs and cannot adequately be understood without realizing that his predecessors’ lives and works, taken together, created the system that produced, defined, and destroyed him. Aaron Swartz wanted to save the world. But the world was never going to let Aaron Swartz save himself.
Table of Contents
Author's Note ix
Introduction The Bad Thing 1
Chapter 1 Noah Webster and the Movement for Copyright in America 17
Chapter 2 A Tax on Knowledge 41
Chapter 3 A Copyright of the Future, a Library of the Future 67
Chapter 4 The Infinite Librarian 93
Chapter 5 The Case for the Public Domain 117
Chapter 6 "Co-opt or Destroy" 143
Chapter 7 Guerilla Open Access 169
Chapter 8 Hacks and Hackers 195
Chapter 9 The Web Is Yours 221
Chapter 10 How to Save the World 247
Select Bibliography 313